Labour law tips related to the coronavirus

The coronavirus is having a major impact on the Norwegian economy and business. A number of employers have had their order volumes significantly reduced. The labour market in general and internal conditions in the workplace are thus significantly challenged as a result of the corona pandemic.

To ease the situation for companies, the government has proposed changes to the legislation relating to layoffs. We receive several questions about this. Below are therefore some guiding starting points related to business law.

The employer's right to manage

The employer's right of management means that the employer can organise, manage, control and distribute the work in the business. The right of management gives the employer a broad authorisation to instruct and impose certain work tasks on employees. However, the use of the employer's right of management must be objectively justified and proportionate.

Employers have a duty to ensure a safe working environment and must therefore continuously assess the risk of the spread of infection in the workplace. In order to prevent infection and illness in the workplace, the employer can implement a number of preventive measures by virtue of its management rights. Such measures may include, for example, the use of home offices, the cancellation of events, the introduction of hygiene requirements and a ban on various types of travel. The right of management as a tool gives the employer good opportunities to meet the upcoming challenges. A high degree of flexibility must be expected from both employer and employee in these corona times.

Absence from the workplace

Employees do not have the right to demand time off from their work duties as a result of fear of infection. This also applies to time off without pay. Any absence from the workplace must therefore be agreed with the employer. Illness and statutory quarantine are legitimate reasons for absence. In the event of illness, the employee will have to obtain a sick note or use the self-certification option in order for the absence to be considered legitimate. An imposed quarantine, on the other hand, will not necessarily correspond to an exemption from work duties, provided that the employee has the opportunity to use a home office.

The employer and employee can agree between themselves that the employee will use a home office. The fact that kindergartens and schools are closed will of course make it difficult to attend the workplace. However, this is not a legitimate reason for absence in itself. As a result, both employer and employee must be flexible. Employers should also facilitate flexible working days, if this is possible.

As a result of the rapid spread of the coronavirus, businesses should expect more of their employees to be on sick leave. Businesses should therefore plan in as much detail as possible for continued operations in the event that more of their employees go on sick leave.

Sickness benefit and care allowance

In order for an employee to be entitled to sickness benefit from NAV if they are infected, the employee must be unable to work. A general fear of infection is therefore not enough. If the employee does not have an agreement with the employer about working from home or other required absences, the employee must receive a sickness certificate in order to be entitled to sickness benefit.

Parents who have to stay at home with children under the age of 12 because kindergartens and schools are closed due to the coronavirus will be entitled to care allowance, so-called «sick child days», if the employee cannot work from home. Normally, employees are entitled to 10 days of care allowance. On 16 March 20202 , the Norwegian Parliament decided to extend the care allowance period to 20 days. Employers are thus required to pay 20 days' wages for this period.

Layoffs

As several businesses have been ordered to temporarily close by the authorities, and other businesses are experiencing major liquidity challenges due to a lack of orders/assignments, several businesses may need to make permanent or temporary cutbacks.

A layoff is an order from the employer to temporarily suspend the employee's obligation to work and the employer's obligation to pay wages. The actual employment relationship between the parties will continue, but during the layoff period the rights and obligations between the parties will be minimal. In order for an employer to be able to lay off employees, an objective reason is required. Fear of infection or the coronavirus in itself does not provide grounds for layoffs. On the other hand, the challenges caused by the coronavirus can provide grounds for layoffs. A lack of orders leading to a shutdown of operations, a shortage of goods and the like may be circumstances that give the employer just cause to lay off employees.

If the employer is considering laying off employees, the need for layoffs must be discussed with the employee representatives in the organisation. Furthermore, an objectively justified assessment must be made of which employees should be laid off. If the employer has subsequently decided to lay off employees, he or she must send out a layoff notice to the relevant employees. In principle, the notice period is 14 days, and layoffs can only be carried out after the notice period has expired. As a result of the coronavirus, the notification period has been reduced to two days.

During the layoff period, the employer is generally obliged to pay full wages for the first 15 days of the layoff. After this, the employer is exempt from the obligation to pay wages for 26 weeks, during which time NAV covers the employees' wages with approx. 60 % of the employees' wages. After the 26 weeks, the employer's obligation to pay wages resumes.

The Norwegian Parliament has decided that the employer period will be reduced from 15 days to two days. Such a solution will have a major positive impact on companies' liquidity. To ensure that employees do not lose large portions of their salary during this period, the Storting has decided that NAV will cover full salary for 20 days. Following the two days when the employer covers full salary and the 20 days when NAV covers full salary, NAV will cover the employee's salary with approx. 60 %.
If, as a result of the corona virus and its impact on working life, the business causes lasting problems for the business, the employer may be entitled to dismiss the employees.

About us

The law firm Halvorsen & Co is open as normal and has good expertise in the challenges that may arise as a result of the coronavirus. Feel free to contact us by phone or e-mail if you have specific issues related to your company or how you as an employee should act in this situation.